MOHINDER PAL SINGH Vs. SURJIT SINGH

JUDGEMENT

(1.) BEFORE the Lower Appellate Court the defendants (respondents herein) were allowed to amend the written statement and consequently, the plaintiff (petitioner herein) was allowed to file replication. Certain issues were framed on the basis of the amended written statement and replication. Additional issue No. 2 was framed as under:" whether Harcharan Singh has executed a Will dated 18. 5. 1987 in favour of Mohinder Pal Singh, and Gurmej Singh. If so its effect? OPP"

(2.) THE case was remanded to the trial Court asking for the report on the additional issues after recording evidence. The petitioner, who was a co-plaintiff with his father in the suit (the father died during the pendency of the suit), moved an application before the trial Court for leading secondary evidence to prove the alleged Will in his favour. The application was rejected on the ground that it has not been pleaded in the plaint or the replication that the alleged Will executed by plaintiff Harcharan Singh in favour of the present plaintiff had been damaged or destroyed in floods.

(3.) LEARNED counsel for the petitioner has argued that in the pleadings, it is not necessary to allege that a particular document or Will had been destroyed and the same shall be proved by way of secondary evidence. It is enough to allege in the pleadings that there is a Will or document in favour of a particular party and only when the question of its proof comes before the Court, then an application has to be moved and a case has to be made out for leading secondary evidence. He, however, argued that the trial Court had erred in rejecting the application on the ground mentioned above.